Foundations of Spanish law: Roman and medieval roots, codification, the Constitution of 1978, the sources and hierarchy of norms, jurisprudence and European law

Roman and medieval roots. Under Rome the Iberian provinces (*Hispania*) received Roman law and citizenship. The Visigothic kingdom issued the Liber Iudiciorum in the seventh century, which later became the *Fuero Juzgo*. In the Middle Ages each Christian kingdom had its own fueros (local charters and customary laws), and in Castile King Alfonso X compiled the Siete Partidas (about 1265), a vast legal encyclopaedia inspired by Roman and canon law that influenced Spanish law and Latin America for centuries. After the union of the crowns, the Bourbon kings, in the Decrees of Nueva Planta (1707–1716), abolished the public law and much of the private law of the Crown of Aragon, but Navarre and the Basque provinces kept their own institutions.

Codification. The nineteenth century brought constitutions and codes. The Commercial Code dates from 1885 and the Civil Code from 1889. The Civil Code was a compromise: it applied to the whole country as common law, but **respected the *foral* civil laws of Catalonia, Aragon, Navarre, the Basque Country, Galicia and the Balearic Islands, where they existed (Module 3). The Criminal Code in force dates from 1995, replacing earlier codes. Under the dictatorship of General Franco (1939–1975) rights were restricted, and after his death a transition to democracy led to the Constitution of 1978, approved by referendum on 6 December 1978 and in force on 29 December 1978**.

The sources. Article 1 of the Civil Code names the sources of the legal system: statute (*ley*), custom (*costumbre*) and the general principles of law. Custom applies only where there is no applicable statute and it is not contrary to morals or public order, and the general principles fill gaps. Jurisprudence (the decisions of the Supreme Court) is not a formal source, but it complements the legal system by interpreting and applying the statute, and the Constitutional Court’s decisions bind everyone. Article 9.3 of the Constitution guarantees legality, the hierarchy of norms, publicity of norms, legal certainty, accountability of public authorities and the non-retroactivity of unfavourable provisions.

The hierarchy. At the top is the Constitution, then EU law in the areas where the Union has power, then organic and ordinary laws, then regulations. A law that conflicts with the Constitution can be struck down by the Constitutional Court (Module 4); a regulation that conflicts with a law is unlawful and can be annulled by the courts. EU law has primacy: Article 93 allows the transfer of powers to the Union, and the Constitutional Court has accepted that EU law prevails over conflicting national law, subject to the fundamental principles of the Constitution. Jurisprudence and doctrine. There is no doctrine of binding precedent, but repeated Supreme Court doctrine guides the courts, a lower court that departs from it without reason risks being reversed, and the principle of equality in the application of the law discourages unexplained differences. Legal doctrine (the writing of professors) is persuasive.